“The Only Clear Limitation on Improper Districting Practices”: Using One

RIGGS FINAL (DO NOT DELETE) 4/14/2017 7:41 PM “THE ONLY CLEAR LIMITATION ON IMPROPER DISTRICTING PRACTICES”: USING THE ONE- PERSON, ONE-VOTE PRINCIPLE TO COMBAT PARTISAN GERRYMANDERING ∗ ALLISON J. RIGGS ANITA S. EARLS INTRODUCTION In 2013 and 2015, the North Carolina General Assembly, controlled by a Republican supermajority, passed local bills restructuring Wake County’s Board of Education and Board of County Commissioners, respectively. These bills were passed over the loud objection of the majority of the Wake County delegation and, indeed, the vast majority of the county’s voters. Wake County, home to the capital city of Raleigh and part of the state’s Research Triangle Park, has long been a progressive bastion in the state, with Democratic registration significantly outnumbering Republican registration in the county, and Democratic candidates regularly outperforming Republican candidates. With carefully manipulated district lines, those local bills would have ensured Republican control of both boards, despite the strong Democratic leaning in the county. Critically, in such a heavily Democratic county, the only way that the General Assembly could achieve such a drastic partisan skew was to overpopulate the Democratic-leaning districts and underpopulate the Republican-leaning districts, right up to what the legislature treated as a ten percent total deviation safe harbor. But the Supreme Court’s Copyright © 2017 Allison J. Riggs and Anita S. Earls. ∗ Anita Earls is the Executive Director of the Southern Coalition for Social Justice in Durham, North Carolina. Allison Riggs is a senior attorney at the Southern Coalition for Social Justice, specializing in voting rights. The authors of this article served as counsel for the organizational and individual plaintiffs in the Wake County cases discussed in this article. RIGGS FINAL (DO NOT DELETE) 4/14/2017 7:41 PM 24 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 12:3 “One-Person, One-Vote” (“OPOV”) jurisprudence makes clear that the equal weighting of citizens’ votes is vital to the functioning of our democracy. As Justice Stevens noted in his concurrence to the Supreme Court’s summary affirmance in Cox v. Larios,1 “the equal-population principle remains the only clear limitation on improper districting practices, and we must be careful not to dilute its strength.” 2 In the fifty or so years in which federal courts have been willing to meaningfully review legislatively-enacted redistricting plans, two race- neutral approaches have emerged to define and explain why plans might be unconstitutionally unfair. The first is the equal population approach under the Equal Protection Clause,3 and the second is the partisan-gerrymandered case, which belief prohibits districting systems that are rigged to ensure that one political party remains in power under the First and Fourteenth Amendments.4 One of those—the equal population approach—has resulted in more success and a much more thorough jurisprudence. Judges have latched onto the idea that every voter should be able to cast a vote that is weighted the same as every other in a jurisdiction. As scholars have noted, though, “[o]ne person, one vote’s individualistic rhetoric may have come to obscure its original purposes of combating entrenchment and safeguarding majority rule.”5 But these two approaches are not unrelated. One recent case brought as an equal population challenge could significantly develop the jurisprudence of partisan gerrymandering cases. In a country marked by increasing political polarization, such overstepping as seen in the Wake County, North Carolina, case is likely to be repeated across the country. Voting rights litigants achieved an important victory in 2016 when the Fourth Circuit ruled in consolidated challenges to those two local bills restructuring those county boards— Wright v. North Carolina6 and Raleigh-Wake Citizens Association v. Wake County Board of Elections7—that the new redistricting plans violated the Fourteenth Amendment’s equal population guarantee. This Article examines the interplay between OPOV litigation and 1. Cox v. Larios, 542 U.S. 947 (2004). 2. Id. at 949–50. 3. Reynolds v. Sims, 377 U.S. 533, 577 (1964). 975 F. Supp. 2d 539 (E.D.N.C. 2014). 4. Vieth v. Jubelirer, 541 U.S. 267, 314–15 (2004) (Kennedy, J., concurring); Davis v. Bandemer, 478 U.S. 109, 143 (1986). 5. Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541, 544 n.17 (2004). 6. 975 F. Supp. 2d 539 (E.D.N.C. 2014). 7. 827 F.3d 333 (4th Cir. 2016). RIGGS FINAL (DO NOT DELETE) 4/14/2017 7:41 PM 2017] THE ONLY CLEAR LIMITATION ON IMPROPER DISTRICTING 25 partisan gerrymandering cases using the Wake County case as the vehicle for understanding the relationship between the two legal approaches. The Article examines the genesis of the Wake County challenges, focusing on how the litigants successfully gathered evidence to demonstrate that illegitimate partisan considerations drove the population deviations. The Article concludes by positing how, even as partisan gerrymandering cases seem to finally be bearing fruit, the OPOV principle still provides the single most important “limitation on improper districting practices” and litigation under that theory should be pursued. This approach will create a legal atmosphere where partisan gerrymandering claims are more likely to succeed. I. BACKGROUND JURISPRUDENCE Before embarking on this case study, it is important to trace the jurisprudential development of two legal theories significant to this case: the one-person, one-vote guarantee and unconstitutional partisan gerrymandering. A. Development of the One Person, One Vote Principle The involvement of the federal judiciary in ensuring that electoral districts are evenly populated, and thus all voters across a jurisdiction cast an evenly-weighted vote, is relatively recent. When it came to apportionment and redistricting, the Supreme Court had long been wary of wading into difficult questions relating to political representation, and Justice Felix Frankfurter once famously cautioned, “[c]ourts ought not to enter this political thicket.”8 That all changed, though, in 1962, when the Court authorized federal courts to begin entering the “political thicket” in Baker v. Carr.9 In Baker, voters in Tennessee challenged the state’s 1901 law that apportioned the members of the General Assembly among the state’s ninety-five counties, where each county was apportioned at least one representative and one senator.10 Plaintiffs alleged that the uneven divvying created a “debasement of their votes” in violation of the Equal Protection Clause of the Fourteenth Amendment.11 Because courts had not previously required jurisdictions to adjust district lines after a federal census or other population enumeration, by the 1960s, 8. Colegrove v. Green, 328 U.S. 549, 556 (1946). 9. 369 U.S. 186 (1962). 10. Id. at 188–89. 11. Id. RIGGS FINAL (DO NOT DELETE) 4/14/2017 7:41 PM 26 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 12:3 many state legislatures were starkly malapportioned, and Tennessee was no exception. In his concurrence in Baker, Justice Douglas noted that “a single vote in Moore County, Tennessee, is worth [nineteen] votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County.”12 The Supreme Court in Baker held that the political question doctrine does not foreclose review of redistricting cases simply because political rights are affected.13 With courts now authorized to review constitutional challenges to reapportionment plans, the Supreme Court over the next two years articulated when such plans could run afoul of the Constitution, leading to the creation of the OPOV rule. In Gray v. Sanders,14 the Court noted: How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, wherever their occupation, whatever their income, and whatever their home may be in that geographic unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.15 It boiled down to this: “[t]he conception of political equality . can only mean one thing—one person, one vote.”16 The next year, in Reynolds v. Sims,17 striking down Alabama state legislative districts as unconstitutionally malapportioned, the Court explained that “[l]egislators represent people, not trees or acres,”18 so Alabama’s desire to assign one senator to each county and to ensure that every county had at least one state representative was not justifiable, and instead only enshrined geographical and regional favoritism.19 The Court further fleshed out the harm such efforts cause: 12. Id. at 245 (Douglas, J., concurring). 13. Id. at 209. 14. 372 U.S. 368 (1963). 15. Id. at 379. 16. Id. at 381. 17. 377 U.S. 533 (1964). 18. Id. at 562. 19. Id. at 543–44, 563. RIGGS FINAL (DO NOT DELETE) 4/14/2017 7:41 PM 2017] THE ONLY CLEAR LIMITATION ON IMPROPER DISTRICTING 27 If a [s]tate should provide that the votes of citizens in one part of the [s]tate should be given two times, or five times, or ten times the weight of votes of citizens in another part of the [s]tate, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.20 Thus, the Court reaffirmed the constitutional harm that can follow if anything other than population is used as the basis of apportionment of electoral districts.

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